Galvin v The Director of Public Prosecutions & ors (Approved)

      Mr. Galvin was then contacted by a person who identified themselves as "Jake Brady" with a view to purchasing the tobacco and they agreed to meet outside a restaurant in the Tallaght area of Dublin. It turned out, however, that the person who had contacted him was in fact an undercover official from the Revenue Commissioners who had used a false alias. That official arranged for a colleague, a Ms. Wall, to carry out the test purchase.

      Ms. Wall's notes of that encounter have been exhibited in an affidavit filed in these judicial review proceedings. It appears that Ms. Wall approached Mr. Galvin and satisfied herself that the tobacco he was offering for sale was indeed 14 gramme tobacco pouches of Golden Virginia. She confirmed the agreed price of �140. At that point, however, Ms. Wall identified herself as an authorised Revenue official. She asked Mr. Galvin to accompany her and another Revenue official to a waiting car where a formal caution was administered.

      It does not appear that any of these facts are seriously disputed, albeit that in the High Court, Quinn J. ruled that the applicant could not be cross-examined on the question of whether he knew that his conduct amounted to an offence. I shall return to this point presently. At all events the Director of Public Prosecutions subsequently commenced a prosecution in the District Court in September 2017 alleging that Mr. Galvin had committed an offence under s. 78(3) of the 2005 Act by selling unstamped tobacco.

      The District Court prosecution has in fact been stayed as consequence of the present judicial review proceedings. It is unnecessary for me to recite the detailed procedural history of these proceedings which will, in any event, be set out in the judgment which Donnelly J. is about to deliver. It is perhaps sufficient to say that the issue in the appeal before this Court centered on aspects of the penalty to which the applicant will or, at least, may be exposed in the event that he was to be convicted by the District Court.

  A further, related consideration is that in a precedent-based system such as ours is that it would be wrong that, as Henchy J. graphically observed in Cahill v. Sutton [1980] IR 269, one person should be allowed to argue what in effect is another person's case: this, in essence, is the rationale for the jus tertii rule. If key or concrete facts are lacking, there is the risk that the courts will find themselves pronouncing on constitutional issues in the abstract.